Smt Saiyeeda Widow Raja And 22 ... vs State Of U.P. And 16 Others
2022 Latest Caselaw 22174 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 3509 of 2022
 
Petitioner :- Smt Saiyeeda Widow Raja And 22 Others
 
Respondent :- State Of U.P. And 16 Others
 
Counsel for Petitioner :- Narayan Dutt Shukla,Rituvendra Singh Nagvanshi,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Shyam Mani Shukla,Sunil Kumar Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Narayan Dutt Shukla, counsel for the petitioners, Sri Shyam Mani Shukla, counsel for the contesting respondent no.7, Sri Sunil Kumar Singh, Counsel for the respondent no.6 /gaon sabha and learned Standing Counsel for respondent nos.1 to 5.

2. Brief facts of the case are that dispute relates to Khata No.471, 549A, 549B, 253, 496 and 497, which is alleged to be ancestral property of the petitioners as well as private respondents. The dispute is with regard to the land share of Alli whose branch ends with Mst. Munni widow of Abdul Karim and Mst. Nanhi widow of Abdul Razak both died issueless and their property will devolve upon the surviving heirs of the branch of Avaj and Aman Bakhs. Both died issueless and their property will devolve upon the surviving heirs of the branch of Avaj and Aman Bakhs. In previous consolidation operation in respect to Village- Sikandarabad, name of Smt. Nanhi widow of Abdul Razaq was recorded over Khata Nos.1907 & 882 total area 33 bigha, 7 biswas. Smt. Munni has executed a power of attorney in favour of Gafur, Abdul Sattar, Ajij and Abdul Mazir. Through aforesaid power of attorney, Smt. Munni Devi has sold her shares to different persons. Smt. Nanhi died issueless and one Noor Mohammad claimed to be her heir and filed a suit seeking declaration that he is sole heir of Smt. Nanhi, in that suit Awaz was made a party. The aforementioned suit was dismissed and Awaj was held to be sole heir of Smt. Nanhi. During consolidation proceeding, Deputy Director of Consolidation vide order dated 9.10.1963 has declared that purchaser of the property of Smt. Nanhi cannot seek their names to be recorded on the basis of sale deed as the sale deed was void under Section 5 C (2) of U.P.C.H. Act. Shabbir filed a Suit No.23 of 1972, under Section 229B / 176 of U.P.Z.A. & L.R. Act with respect to Khata No.1326, 1328, 1352, 1890, 1892, 1907 & 1910 to declare that he and his brother who were impleaded as defendant no.1 and defendant no.16 have 1/2 share in the disputed land and on the other half, the other defendants who are purchaser from Smt. Nanhi have right. The aforementioned suit was decreed by the trial Court vide judgment dated 21.9.1973 wherein the petitioners, Shabbir and his brother Abdul Gaffur & Kallu, defendant nos.1 and 16 were declared owner of the property with 1/3 share each and rest of the defendants will not get any share on the basis of the sale deed executed by Smt. Nanhi as the sale deed was declared void in the consolidation proceeding. Abdul Gaffur and others filed an appeal against the judgment dated 21.9.1973 and the same was allowed by the Additional Commissioner vide judgment dated 5.2.1974. Against the judgment dated 5.2.1974, Shabbir filed a second appeal before the Board of Revenue which was allowed vide judgment dated 8.10.1980 setting aside the judgment of the Additional Commissioner dated 5.2.1974 and the judgment of trial Court dated 21.9.1973 was affirmed. The judgment of the Board of Revenue dated 8.10.1980 was challenged before this Court through Writ Petition No.10508 of 1980, this Court vide judgment dated 21.12.1981 allowed the writ petition and held that the sale deed executed by Smt. Nanhi would not affect Section 5 C of U.P.C.H. Act, the judgment of the Board of Revenue dated 8.10.1980 was set aside and the matter was remanded back to the Board of Revenue to decide the second appeal afresh. The judgment of the High Court dated 21.12.1981 was challenged before the Hon'ble Supreme Court through SLP No.669 of 1982 and the Hon'ble Supreme Court vide judgment dated 13.9.2000 set aside the judgment of this Court dated 21.12.1981. The review application for review the judgment dated 13.9.2000 was filed before Hon'ble Supreme Court by the respondents of Writ Petition No.10508 of 1980 which was dismissed vide order dated 6.12.2000. In view of the final adjudication by the Hon'ble Supreme Court, the right and title of defendants of Suit No.23 of 1972 who were purchaser through sale deed by power of attorney holder of Smt. Nanhi has come to an end as their sale deed was held to be void. Petitioners filed a fresh suit under Section 229B / 176 of U.P.Z.A. & L.R. Act with the prayer that petitioners may be declared as bhumidhar over 2/3rd part of the property in suit. The suit filed by petitioners was dismissed by trial Court vide order dated 16.6.2016 on the ground that the dispute with regard to the property has already been decided by Hon'ble Supreme Court, as such, the present suit is barred by res-judicata. The judgment of trial Court was affirmed in appeal by the Additional Commissioner vide judgment dated 7.2.2020 as well as in second appeal by the Board of Revenue vide judgment dated 13.5.2022, hence this writ petition.

3. Learned counsel for the petitioners submitted that subject matter in the proceeding originated from Suit No.23/ 72 was on separate ground wherein only the validity of the sale deed executed by Smt. Nanhi was in question whereas in the present suit, petitioners' claimed their right over the disputed property on the basis of natural succession also, as such, the present suit has been illegally held to be barred by principle of res-judicata. He further submitted that question with respect to succession of Mst. Munni was not decided in any proceeding and it has not attained finality but the courts below have not applied their mind and dismissed the plaintiffs' suit on the principle of res-judicata. He further submitted that claim of petitioners in the present suit was not on the basis of sale deed which was declared void up to Hon'ble Supreme Court but in the present suit petitioners' claim on the basis of natural succession of Mst. Nanhi and Munni, which has not been adjudicated in any of the previous proceeding. He further submitted that some of the petitioners or their ancestors were not party in the proceeding of Suit No.23 of 1972, therefore, any order passed in the proceeding will not affect the right of the petitioners as successor of Smt. Munni and Smt. Nanhi. He further submitted that the impugned judgments / orders be set aside and matter be remanded back to the trial Court to decide the suit afresh.

4. I have considered the argument advanced by learned counsel for the petitioners and perused the records.

5. There is no dispute about the fact that the earlier Suit No.23 of 1972 (Shabbir Vs. Abdul Gaffur & Others), under Section 229B / 176 of U.P.Z.A & L.R. Act has been finally adjudicated by Hon'ble Supreme Court and the plaintiffs have been negatived and the present Suit No.24 / 2011-12 has been filed by Smt. Saiyeeda widow of Raja and others which has been dismissed by all the three courts holding that the present suit is barred by principle of res-judicata as the controversy which as been adjudicated in the earlier suit is same and identical to the present suit.

6. Since all the three courts have concurrently held that subject matter of the present suit is same which has been adjudicated in earlier Suit No.23 of 1972 by Hon'ble Supreme Court, as such, trial Court has rightly dismissed the subsequent suit filed by petitioners on the principle of res-judicata. The judgment of trial Court has been affirmed in first appeal as well as in second appeal affirming the findings recorded by the trial Court that the present suit is barred by principle of res-judicata and the plaintiffs-petitioners without disclosing the complete facts have filed the present suit for declaration, which is abuse of process of law.

7. Learned counsel for the petitioners has failed to demonstrate that cause of action / controversy is different to the earlier Suit No.23 / 72 which was contested from 1972 till 6.12.2000 on which date the review petition was dismissed by the Apex Court.

8. Considering the facts and circumstances, no illegality or infirmity has been found in the impugned judgments. No interference is required against the impugned judgments.

9. The writ petition is devoid of merit and is accordingly, dismissed.

Order Date :- 21.12.2022/Rameez